Proving a homemade handwritten Will

Trusts Discussion
#1

Hello all

On an estate I am dealing with, the deceased made a homemade will which was handwritten by him on hospital paper. The two pages of the Will are loose and not fastened together. The will is also only dated “February 2020”.

What evidence do you think the Probate Registry will need to prove it? I was thinking an affidavit of handwriting (which the executor is willing to do as he knew and worked with the deceased for 50 years and knows his handwriting). Do I need to exhibit the original Will to the affidavit or will a copy suffice?

I know there is space on the PA1P to talk about “any features of the will that you wish to highlight, such as the condition of the will, or if it has been separated, why, who by and when?” but should I get the executor to sign a separate affidavit of plight and condition and finding?

Also, do you think I need to get an affidavit from the witnesses to provide the actual date the Will was signed (provided they recall that of course)?

Any help anyone can give me would be appreciated.

Many thanks,

Natalie Tonkin
Beviss & Beckingsale LLP

#2

I suggest the witnesses provide statements detailing the circumstances when the will was signed, including when it was signed and its condition – that it was on 2 separate pieces of paper - and confirm that they believe the individual sheets are those that were presented to them at the time of their attestation.

I believe their evidence will be more significant than that of the executor, unless they were also present when the will was executed.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

1 Like
#3

I’m not sure you need a affidavit of handwriting . I do think you need a affidavit signed by the attesting witnesses as to the circumstances of the signing/witnessing - covering the issue of the two unfastened pages and the date of signing. I am sure there will be a precedent in Tristram and Cootes that will assist you. It’s a shame that you can no longer pick up the phone to the local Probate Registry for guidance in a matter like this.

Sarah Arundel
Taylor Fawcett

#4

I would get an affadavit signed by the attesting witnesses, assuming that the Will was validly executed.

Sue Underwood
Wolsey Probate

#5

I had a similar situation a few months ago. The testator had written her will on two separate pages of paper that were not stapled together. When I sent the application to the Probate Registry
I received an email asking for evidence that the two pages submitted were “those in existence at the execution and that the testator has not removed, added or altered any pages”. (I have quoted from the query.) The will was dated a certain date in August
2017. I rang the surviving Executor, who told me that the testator had met her and her late husband in late August 2017 and handed them a sealed envelope. She told them that it contained her will, of which they were both Executors. They put it in their
safe and did not open it until after the testator had died. I relayed this information to the Probate Registry by email, who accepted it without any further query. I received the Grant a few days later.

Interestingly, the two witnesses had signed above the testator and I had expected to be asked to provide an Affidavit about the execution but this point was not raised at all.

Cliona O’Tuama

Solicitor

#6

Thank you. Yes, it is a shame! Having discussed with the witnesses, they cannot recall the date that the Will was signed. Do you think this will be a problem?

Natalie Tonkin
Beviss & Beckingsale LLP

#7

Unless there is evidence of another Will having been executed in February 2020, I cannot see that the lack of the actual date should prevent the issue of probate. As suggested by Paul, the witnesses should make the appropriate statement possibly in a statement of truth but that they do not recall the exact date in February 2020 when they witnessed the Will.

Patrick Moroney
BWL Solicitors

1 Like
#8

I’m going to start by making an assumption that the Estate devolves differently under the handwritten Will than it would under intestacy, as otherwise one could rely upon NCPR 12 (3) to seek that the Will is proved without recourse to affidavit evidence.

Other than that, and without repeating what others have already said, it make be worth calling the relevant Probate Registry to see what they would likely request be provided by requisition should the Will be submitted for proving without any supporting documentary evidence.

Michael Fogg
JMD Law

#9

May I add a further complication. I have a similar situation; handwritten Will in Hebrew, dated according to the Jewish calendar. The testator did not sign the Will and no one witnessed it. Clearly, the Will does not meet the basic requirements of s.9, however, on the other hand, it feels wrong to ignore the testator’s instructions.
Any thoughts on that?

Liora Torn-Hibler
Berlad Graham LLP

#10

Good luck calling the Probate Registry!

Iain Cameron
Acer Legal

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#11

Was the deceased an Israeli citizen, domiciled in or a national of Israel, or wrote the will whilst in Israel?

If any of the above, it may be the validity of the will is subject to the Israeli Law requirements and s.1 Wills Act 1963 might allow it to be accepted for probate in England.

My understanding is that provided the will is hand-written by the intending testator, and signed in their own handwriting, it is valid. Under the Law of E&W, it has been held that a testator who merely writes his name may have validly executed it if, by writing his name he intended to execute the will. It may be that a similar provision exists under Israeli Law.

I suggest it would be appropriate to refer the question to a firm specialising in Israeli wills, which should also be able to provide an affidavit of foreign law, if they advise the will is valid.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

#12

I had a similar situation where an unmarried childless lady made a homemade Will that had only one witness. Her parents would have inherited on intestacy and they wanted to follow her wishes, so
they entered into a deed of variation that passed her estate as per her “Will”.

In your estate if the beneficiaries on intestacy are not willing to follow the testator’s wishes, there is not much that you can do.

Cliona O’Tuama

Solicitor

#13

Liora - Unless you can find a relevant law where the will may be valid under the Wills Act 1963 s.1, it’s just plain invalid. It’s not even close. It’s up to the heirs under the intestacy to decide whether they want to follow the testator’s wishes.

Andrew Goodman
Osborne Clarke LLP

#14

@ClionaOTuama
You are absolutely correct.
My problem is how to communicate between 13 siblings?
Also, I am only dealing with the application for Probate.

Liora Torn-Hibler
Berlad Graham LLP

#15

Forgive me if I’m a little late to the party here, Liora. However, should you be engaged on a ‘Grant only’ basis under an intestacy (as this would appear to be) there would not be a de facto requirement to place anyone on notice of their Powers being Reserved to them, as there are no appointed powers arising.

The matter of communicating between the de facto beneficiaries (I assume that the aforementioned siblings are the legal NoK of D) would then be for the person named of the Grant to address. Whether the advised written wishes of D are then followed would be a matter for the residuary beneficiaries under intestacy to determine if they wish to Vary the Estate accordingly.

Michael Fogg
JMD Law

#16

Dear Michael,

Thank you very much for the comment. Funnily enough the situation is more complicated then initially thought as the hand-written will may be (not sure at all) corrected in Israel and approved as a valid will in that jurisdiction.

Liora Torn-Hibler
Berlad Graham LLP

#17

it is not difficult to prove if there is an original will
if in the will of the property is transferred to the relatives, then the will will not be considered as forwarded.

Zavier Larsen
AMC

#18

@paul
Thank you for your comprehensive response.
The deceased was not an Israeli citizen, he was domiciled in the UK and was buried here. He was born in Israel, hence his Hebrew, but he moved to the UK many years ago.
Regrettably, under Israeli law the ‘handwritten will’ is invalid as it is not signed, or the attestation page is missing! This is very unfortunate of course, since for all intents and purposes it looks like a will. The three written pages, include burial wishes and very detailed instructions regarding estate distribution, in unequal shares, between his 13 children.

Liora Torn-Hibler
Berlad Graham LLP

#19

Liora, that makes your position much more difficult than in the case of the homemade Will to which I had referred in my post. In my case the parents of the deceased, as the only persons entitled on her intestacy, were perfectly happy to follow her wishes as set out in her “Will”, which gave various legacies and then gave the residue to her only sibling, who will ultimately be the parents’ residuary beneficiary too. A Deed of Variation was the obvious solution in that estate but is less likely to be an option in your estate, apart from the communication issue.

Cliona O’Tuama

Solicitor